People v. Helfrich ( 2021 )

NOTICE
2021 IL App (5th) 190147-UNOTICE
Decision filed 04/06/21. The
This order was filed under
text of this decision may be NO. 5-19-0147 Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Petition for
Rehearing or the disposition of
IN THE limited circumstances allowed
under Rule 23(e)(1).
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) St. Clair County.
)
v. ) No. 17-CF-862
)
KEVIN HELFRICH, ) Honorable
) Zina R. Cruse,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________
PRESIDING JUSTICE BOIE delivered the judgment of the court.
Justices Moore and Wharton concurred in the judgment.
ORDER
¶1 Held: The defendant was not denied his constitutional right to effective assistance
of counsel at his sentencing hearing.
¶2 The defendant, Kevin Helfrich, drove intoxicated and was involved in a head-on
collision that resulted in two deaths. He subsequently entered into an open guilty plea to
one count of aggravated driving under the influence (DUI) and two counts of reckless
homicide. The circuit court sentenced the defendant to 18 years in the Illinois Department
of Corrections. In a direct appeal from his sentence, the defendant argues that he was denied
his constitutional right to effective assistance of counsel at his sentencing hearing. For the
following reasons, we affirm the defendant’s sentence.
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¶3 BACKGROUND
¶4 On July 8, 2017, at approximately 12:45 a.m., the defendant drove his GMC Sierra
pickup truck down Illinois Route 15, traveling westbound in the eastbound lanes with his
vehicle’s cruise control set at 62 miles per hour. He collided head-on with another vehicle
that was traveling in the proper direction and was occupied by John Bannister and Daryl
Harton. Bannister and Harton died at the scene of the accident. The defendant never applied
his breaks before the collision and had a blood-alcohol concentration of .250, three times
the legal limit. Police officers who responded to the scene found three cans of unopened
beer in the passenger compartment of the defendant’s truck.
¶5 On November 3, 2017, the State charged the defendant with one count of aggravated
DUI in violation of section 11-501(a)(1) of the Illinois Vehicle Code (625 ILCS 5/11-
501(a)(1) (West 2016)). The State also charged the defendant with two counts of reckless
homicide in violation of section 9-3(a) of the Criminal Code of 2012 (720 ILCS 5/9-3(a)
(West 2016)) for the deaths of Bannister and Harton. The defendant appeared in court on
January 23, 2019, and entered into a guilty plea to all three counts, with counts II and III
merging into the aggravated DUI charge alleged in count I. The charged aggravated DUI
offense was a Class 2 felony with a possible sentencing range from 6 to 28 years.
¶6 On March 25, 2019, the circuit court conducted the sentencing hearing. The
presentencing investigation (PSI) report established that the defendant was 55 years old at
the time of the accident and had three adult children. The PSI report also established that
the defendant had a history of alcohol abuse that included four prior arrests for DUIs in
2000, 2009, 2015, and 2016. The defendant had been ordered to undergo alcohol
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evaluations and counseling as a result of these past DUIs. The most recent past DUI
occurred on October 16, 2016, and the defendant was ordered to submit to alcohol
counseling.
¶7 The prosecutor told the circuit court that the defendant’s discharge date from his
most recent alcohol counseling was March 2, 2017, which was four months before the
head-on collision killing Bannister and Harton. The defendant’s discharge summary stated,
“Client reports he is no longer drinking to intoxication, and has realized the financial and
nonfinancial consequences of his past abusive drinking patterns.” However, the PSI report
established that approximately three months after being discharged from the most recent
alcohol treatment (one month prior to the head-on collision at issue in this case), the
defendant was cited for having an open container of alcohol in his truck.
¶8 At the sentencing hearing, the State also highlighted a doctor’s statement in the PSI
report that the defendant’s medical history included significant alcohol abuse. The State
argued that these prior incidents and treatments showed “a major disconnect between what
the defendant reports to counselors and also medical professionals and his family members,
and reality.” The State believed that the defendant had not been honest with his counselors
during the previous alcohol abuse treatments he received.
¶9 The State further highlighted the aggravating factors that it felt were applicable,
argued that the circumstances of this case were extraordinary circumstances due to the
extreme level of intoxication and the defendant’s disregard “for all these past attempts to
right that problem,” told the circuit court that the defendant was not a candidate for
rehabilitation, and recommended a sentence of 24 years in the Illinois Department of
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Corrections. The State also presented victim impact statements from Bannister’s and
Harton’s families.
¶ 10 The defendant’s attorney presented the testimony of the defendant’s sister who told
the circuit court about the defendant’s character and remorse. The defense also presented
testimony from the defendant himself. The defense attorney argued that the defendant had
accepted responsibility by pleading guilty to the offense. The defense also noted that the
defendant received supervision or probation for all his prior DUI offenses and that the State
never filed any petitions to terminate supervision or probation or objected to successfully
closing those prior cases. The defendant’s attorney emphasized the defendant’s good
character based on his sister’s testimony and a package of handwritten letters written on
behalf of the defendant.
¶ 11 As part of his argument for leniency, the defendant’s attorney told the circuit court
that there had been four individuals sentenced for aggravated DUI in St. Clair County since
2016. The defense attorney stated, “One got probation. Three have been sentenced to
prison, five years, seven years, and fifteen years.” The defendant’s attorney told the circuit
court that the defendant who was sentenced to 15 years killed two people, had prior
felonies, weaved through traffic driving 110 miles an hour, possessed a gun and drugs, and
tried to destroy evidence. In contrast, the defense argued that the defendant in the present
case had no prior felony convictions and was unlikely to commit another crime.
¶ 12 The defense attorney then argued the factors in mitigation including that the
defendant did not contemplate that his actions were going to cause harm and that he was
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likely to comply with conditions of probation. In allocution the defendant apologized to
Bannister’s and Harton’s families.
¶ 13 In sentencing the defendant to 18 years in the Illinois Department of Corrections,
the circuit court stated that it considered the factual basis for the offense; the PSI report;
the history, character, and attitude of the defendant; the evidence and arguments presented
at the sentencing hearing; and the aggravating and mitigating factors. The circuit court
found that there were no extraordinary circumstances that would justify a “probationable
offense.” The circuit court described the case as “an absolute tragedy” that resulted from
poor choices rather than resulting from the defendant being “a poor person in character and
in spirit and in personality.” The circuit court stated that it looked at one of the cases
referred to by the defense attorney where the defendant received a 15-year sentence and
concluded that there was no evidence in that case that the defendant drove drunk “over and
over.” The circuit court told the defendant that the defendant had used all of his chances
for freedom during his previous arrests for DUI. The defendant now directly appeals his
sentence, arguing that he received ineffective assistance of counsel at the sentencing
hearing.
¶ 14 ANALYSIS
¶ 15 The only issue the defendant raises on appeal is a claim that his attorney was
constitutionally ineffective at the sentencing hearing. Specifically, the defendant contends
that his attorney was ineffective for comparing his case with the four other unrelated
aggravated DUI cases from St. Clair County since 2016.
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¶ 16 We evaluate a defendant’s claim of ineffective assistance of counsel under the two-
prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by the
supreme court in People v. Albanese, 104 Ill. 2d 504 (1984). People v. Moore, 356 Ill. App.
3d 117, 121 (2005). “Under this test, a defendant must demonstrate that counsel’s
performance fell below an objective standard of reasonableness, and a reasonable
probability exists that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” People v. Henderson, 2013 IL 114040, ¶ 11. “This means the
defendant must show that counsel’s errors were so serious, and his performance so
deficient, that he did not function as the ‘counsel’ guaranteed by the sixth amendment.”
People v. Perry, 224 Ill. 2d 312, 342 (2007). Because the defendant has raised his claim of
ineffective assistance of counsel for the first time on appeal, our review is de novo. See
People v. Lofton, 2015 IL App (2d) 130135, ¶ 24. In the present case, the defendant has
failed to establish either prong of the Strickland standard. The defendant has not established
that his counsel’s performance at the sentencing hearing was professionally deficient or
that he was prejudiced by his counsel’s performance at the sentencing hearing.
¶ 17 First, with respect to the first prong of the Strickland standard, i.e., whether
counsel’s performance was professionally deficient, we note that the defendant’s complaint
about his attorney’s performance is a complaint that is directed at a strategy decision made
by the attorney. Asking the circuit court to consider the sentences in four unrelated cases
involving aggravated DUI was a matter of strategy.
¶ 18 A decision that involves a matter of strategy will typically not support a claim of
ineffective assistance of counsel. People v. Custer, 2019 IL 123339, ¶ 39. A strategy
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decision may be attacked under the rubric of ineffective assistance of counsel only where
trial counsel “entirely fails to conduct any meaningful adversarial testing.” (Internal
quotation marks omitted.) Id. Here, the defense attorney’s performance at the sentencing
hearing subjected the State’s request for a 24-year sentence to meaningful adversarial
testing and, in fact, secured a sentence that was 6 years less than the State’s
recommendation. Therefore, the defense attorney’s strategy decision does not constitute
ineffective assistance of counsel.
¶ 19 The defendant argues that his attorney’s reference to other unrelated cases was
inherently flawed because our supreme court has rejected sentencing challenges based on
the comparison of sentences imposed in other cases. In People v. Fern, 189 Ill. 2d 48, 55
(1999), our supreme court held that reviewing courts could not evaluate the excessiveness
of a lower court’s decision by comparing sentences imposed in other unrelated cases.
However, the Fern court also suggested that, in fashioning a sentence, the circuit court can,
in fact, consider its knowledge of the sentences imposed in other cases. Id. at 62.
Accordingly, in the present case, the defense attorney’s decision to compare the present
case with the four other aggravated DUI sentences was not an inherently flawed argument.
¶ 20 The circuit court stated that it reviewed one of the cases highlighted by the
defendant’s attorney, a case involving an aggravated DUI and the death of two people. The
defendant in that case received a 15-year sentence. The circuit court found that this
unrelated case was not comparable with the present case because the defendant in the
present case continued to drive drunk “over and over” after being given multiple
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opportunities to change his behavior with supervision and counseling after four previous
DUI arrests.
¶ 21 In Fern, the supreme court noted that comparing sentences in unrelated cases has
limited usefulness because people who commit crimes independently are seldomly, if ever,
similarly situated and because no two cases are ever truly the same. Id. at 57-59. As the
State points out in its brief, the defendant’s attorney understood the limitations of this line
of argument by acknowledging in his argument that all cases are unique. Nonetheless, the
defense strategy of asking the circuit court to consider a lighter sentence in light of the
comparable cases was not inherently improper even though the comparison was rejected
by the circuit court. In addition, the comparison strategy was only a small part of the
defense attorney’s performance at the sentencing hearing.
¶ 22 At the sentencing hearing the defendant’s counsel highlighted multiple factors in
mitigation, including that the defendant did not contemplate or intend any harm to others,
that the defendant had no prior felonies, that the defendant was unlikely to commit another
crime, that the defendant would comply with the terms of probation, and that incarceration
would cause an excessive hardship to his family. See 730 ILCS 5/5-5-3.1 (West 2018)
(setting out factors in mitigation). The defendant’s attorney also presented the circuit court
with handwritten letters attesting to the defendant’s good character, which the circuit court
reviewed and considered. The defendant’s attorney presented the testimony of the
defendant’s sister who testified about the defendant’s remorsefulness, good character, and
his involvement in the care of the sister’s disabled son and their disabled father who had
suffered a brain aneurysm years ago. The sister’s testimony provided part of the factual
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basis for defense counsel’s argument that the defendant was remorseful, capable of
rehabilitation, and was a good man who fulfilled a caretaking role in his family.
¶ 23 When we consider the entire record in this case, we cannot conclude that the
defendant’s attorney committed any error at the sentencing hearing in arguing for a lenient
sentence by comparing the sentences in other cases. As a result, the defendant failed to
satisfy the first prong of the Strickland standard. People v. Simpson, 2015 IL 116512, ¶ 35.
¶ 24 Second, with respect to the second prong of the Strickland standard, the defendant
has not established any prejudice from the claimed error. To establish prejudice from a
defense attorney’s performance at a sentencing hearing, a defendant must show that a
reasonable probability exists that his sentence was affected by the error. People v. Brisbon,
164 Ill. 2d 236, 246 (1995). “[A]n ineffectiveness claim can often be disposed upon a
showing that a defendant suffered no prejudice from the claimed errors without deciding
whether the errors constituted constitutionally ineffective assistance of counsel.” People v.
Odle, 151 Ill. 2d 168, 172-73 (1992). In the present case, the defendant’s ineffectiveness
claim fails because he suffered no prejudice from his attorney’s argument at the sentencing
hearing.
¶ 25 It is well established that “[t]he most important sentencing factor is the seriousness
of the offense, and the court need not give greater weight to rehabilitation or mitigating
factors than to the severity of the offense.” People v. Charles, 2018 IL App (1st) 153625,
¶ 47. Here, the circuit court specifically stated that the defendant’s sentence was related to
the defendant’s inability to drive sober despite multiple arrests for DUI and court-ordered
counseling. Although the circuit court ultimately rejected the defense attorney’s
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comparison with the four unrelated cases, nothing in the record suggests that rejection of
this argument impacted the length of the sentence that the circuit court ultimately imposed.
In fact, as noted by the State, the circuit court imposed a sentence that was six years less
than the sentenced recommended by the State. Based on the circuit court’s comments at
the sentencing hearing, the record establishes that the defendant’s sentence was due to his
continual drinking and driving, not because his attorney made an unpersuasive comparative
sentencing argument.
¶ 26 The defendant chose to drive when he was extremely intoxicated, resulting in the
needless deaths of Bannister and Harton. The tragic nature of this offense cannot be
understated. The defendant had been given multiple opportunities in the past to correct his
behavior, but he was less than honest with his counselors about his drinking. He had
completed his last round of counseling just four months prior to the fatal accident and had
told the counselors that he was no longer drinking to intoxication and that he finally
recognized the consequences of his drinking patterns. He received a citation for open
container of alcohol shortly after this counseling and just one month prior to the head-on
collision killing Bannister and Harton. The prosecution outlined several aggravating
factors that applied, including that the defendant drove in the opposite direction of traffic.
See 730 ILCS 5/5-5-3.2(a)(31) (West 2018). The aggravating factors justified the circuit
court’s sentence. Under these facts, the defendant has failed to establish the prejudice prong
of the Strickland test.
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¶ 27 Based on the analysis above, we conclude that the defendant has failed to satisfy
either prong of the Strickland standard and, therefore, has failed to demonstrate that he
received ineffective assistance of counsel at his sentencing hearing.
¶ 28 CONCLUSION
¶ 29 For the foregoing reasons, we affirm the defendant’s sentence.
¶ 30 Affirmed.
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